Public Bill Committee

[Sir Nicholas Winterton in the Chair]

Nicholas Winterton: Before we begin, my co-Chair, Joan Walley, is sat on my right and will remain as long as she wishes during this sitting, but she will chair the Committee this afternoon. Before we begin our formal business, may I make one or two preliminary announcements? Many members of the Committee will have heard them before from other Chairs. Members may, if they wish, remove their jackets during Committee sittings. In future, if they wish to do so they do not have to look to me to give permission. I am very happy that they should be as comfortable as they want to be during our deliberations. Will all Committee members please ensure that all electronic devicesmobile phones, pagers and so onare turned off or switched to silent mode during Committee sittings? I should like, too, to remind hon. Members that adequate notice should be given of amendments. As a general rule, I and my fellow Chair do not intend to call starred amendments, including any starred amendments that may be reached during an afternoon sitting of the Committee.
This will probably be the last Committee that I shall chair in my parliamentary career.

Peter Kilfoyle: A terrible shame!

Nicholas Winterton: Thank you very much. This Committee is one of the first that my co-Chair is taking, and I have a sense that it will be a very agreeable and constructive one. I am confident that members of the Committee will not let me down on my initial instinct.
We now move on to matters relating to the programme motion, which is on the amendment paper. I remind the Committee that debate on the motion is limited to half an hour. We will then proceed to a motion to report written evidence, which we can hopefully take formally. Therefore, without further ado, I ask the Under-Secretary to move the programme motion.

Claire Ward: I beg to move,
That
(1) the Committee shall (in addition to its first meeting at 10.30 am on Tuesday16 March) meet
(a) at 4.00 pm on Tuesday 16 March;
(b) at 9.30 am and 1.00 pm on Thursday 18 March;
(c) at 10.30 am and 4.00 pm on Tuesday 23 March;
(d) at 9.30 am and 1.00 pm on Thursday 25 March;
(2) the proceedings shall be taken in the following order: Clauses 1 to 17; Schedules 1 and 2; Clauses 18 to 20; new Clauses; new Schedules; remaining proceedings on the Bill;
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 25 March.
I welcome you, Sir Nicholas, to the Chair. I note that this may be your last Committee before the impending general election. No doubt you will face new and different challenges. I am sure that you and your co-Chair, Mrs. Walley, will ensure that our proceedings are conducted fairly and that we have proper scrutiny of this very important Bill.
The programme motion provides for up to eight sittings, which I trust hon. Members will agree will prove more than adequate to ensure that the Bill is properly scrutinised. Whether we will need all eight sittings remains, of course, to be seen, but I look forward to a constructive debate. I commend the programme motion to the Committee.

Jonathan Djanogly: Good morning, Sir Nicholas. May I join the Under-Secretary in saying how much we look forward to serving under your chairmanship and, indeed, the chairmanship of Mrs. Walley? I believe that this is her first Committee, so I welcome her. I have served under your chairmanship on many occasions, Sir Nicholas, and I have every expectation that you will do as good a job on this Committee as you have always done on previous occasions.
We believe that the time allocated is broadly correct, given the serious changes to the law that the Bill involves and its dramatic implications for British business. I have one further point on programming, Sir Nicholas. Yesterday, my office received a number of e-mails and calls from a variety of organisations that have been making serious and often important contributions to issues associated with the Bill. However, those organisations have a concern, which came back to me via a national newspaper: that we should curtail these proceedings because a number of todays amendments have previously been debated by their Lordships in the other place.
I am not going to name those organisations, but they were lucky that I was out of the office when they called yesterday. To talk about curtailing the programming of this debate is to subvert the democratic process in an unacceptable way. We have reviewed the debates in the other place and have noted a number of issues on which such debate needs to continue. It is unacceptable that so-called anti-corruption and pro-civil rights organisations should suggest that we curtail democratic debate on an issue of such importance to the anti-corruption movement and British business. Shame on the Liberal Democrat spokesman, the hon. Member for Cambridge, for his comments to the Financial Times yesterday. He said:
Its very disappointing and disturbing to see these kinds of issues being raised again...One suspects its an attempt to prevent the bill getting through in this parliament, which would be a disaster for this countrys reputation.
I would like him to confirm and to address those comments, which I find despicable and undemocratic.
This House and the upper House have every right to debate these issues, and we intend to do that over the next two weeks. As I spelled out clearly in my letter to the Financial Times last week, we share the frustration of those organisations and we have been calling for the Bill to be brought forward for the past three years. Just because the Government have left the Bill to the dying days of this Parliament, that does not mean we are prepared to say that this Committee is irrelevant. Those organisations, which I am not going to name today, are warned to leave the programming of this Committee to Parliament.

David Howarth: May I say how sad I am, Sir Nicholas, that this is your last Committee? It is also my last Committee, unless some other Bill appears between now and Dissolution, which I doubt. It has been a pleasure to serve under your chairmanship on all the Bills we have considered together. Your view of how a Committee should progress, to ensure that the issues are debated properly but promptly, is a model of how a Committee should be chaired in this House. I hope that your successor in the House, and mine, have an opportunity to learn those lessons.
I am content with the programme motion, although I agree with the Under-Secretary that we should not need all the time put down for our deliberations. I am also content with the order of consideration that she proposes. Our one major concern is with clause 13, which exempts from the scope of the offence certain public officials: members of the defence forces and intelligence services. We will require some time to discuss that.
The issues associated with the Bill have been discussed extensively, not just in the other place but in the Joint Committee that considered the drafting. There have been numerous consultation exercises involving august bodies such as the Law Commission, and not just the non-governmental organisations to which the hon. Member for Huntingdon referred. It would be unfortunate if our debates were simple repetitions. I am perfectly happy to discuss new and important points as they arise, but I think the hon. Gentleman doth protest too much. The issue he raises will be judged by the Committee, and by those outside, by what he does, not just by what he says now.

Oliver Heald: I did not want to lose this opportunity to say how much I have enjoyed being chaired by you over the years, Sir Nicholas, and making contributions in debates with you over such a long time. It will be rather nice to be on your Committee swan-song. I certainly look forward to you chairing it with your usual aplomb.
As for the hon. Member for Cambridge, he and I were spokesmen on constitutional affairs for a period and battled away against the Governments ideas on legislative and regulatory reform, quite successfully in the end. He will be missed, but I do not think we will feel too sorry for him because he is going back to be a reader at Cambridge university by the gently lapping waters of the Cam. That is no doubt a pleasant life in its own way.
There are two issues that concern me. The first is this modern idea that it is always better to find a new word to describe what the public, lawyers and all of us have understood as being the crime. There are not many people who do not know what bribery and corruption are. As far as I am aware, the public have never had any difficulty in recognising a corrupt act or an act of briberya backhander in ordinary parlance.
Equally, when it comes to our forces trying to civilise an area after a conflict, it is useful if they can have money available for good purposes.

Nicholas Winterton: Order. I hesitate to interrupt the hon. Gentleman as he is always so agreeable, but he is going slightly wide of the matter we are debating. If he can relate his remarks to the programme motion I shall be happy for him to continue, but I suspect he wants to bring his remarks to an end.

Oliver Heald: I just wanted to make the pointI was setting it in context and, as ever, at perhaps at too great a lengththat I hope we have sufficient time to discuss these two important issues. It seems part of a trend to start calling a shovel something else, and our forces need a certain amount of discretion in how they use funds when they are trying to civilise a difficult situation after a conflict. Those were the two issues I wanted to be sure we had time for.

Nicholas Winterton: I am sure the Committee and both Chairs will commit time to ensuring that both those matters can be debated. If there are no further contributions on the programme motion, I will put the question.

Question put and agreed to.

Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.(Claire Ward.)

Nicholas Winterton: Let me advise the Committee that copies of any memorandums it receives will be made available in the Committee Room.

Clause 1

Offences of bribing another person

Jonathan Djanogly: I beg to move amendment 1, in clause 1, page 1, line 3, after if, insert acting with corrupt intent.

Nicholas Winterton: With this it will be convenient to discuss the following:
Amendment 2, in clause 1, page 1, line 3, after if, insert acting with dishonesty.
Amendment 3, in clause 2, page 2, line 2, after if, insert acting with corrupt intent.
Amendment 4, in clause 2, page 2, line 2, after if, insert acting with dishonesty.
Amendment 5, in clause 4, page 3, line 10, after expectation, insert with corrupt intent.
Amendment 6, in clause 4, page 3, line 13, at end insert and demonstrates corrupt intent.
Amendment 7, in clause 6, page 3, line 42, after to, insert improperly.
Amendment 8, in clause 6, page 3, line 42, after to, insert corruptly.
Amendment 9, in clause 6, page 4, line 3, after an, insert undue.
Amendment 10, in clause 6, page 4, line 5, at end insert improper.

Jonathan Djanogly: The grouping of so many amendments means that a large number of issues will be debated together. These can be split into two broad strands: clauses 1 to 3, and clause 6. Given that many of the concepts we will discuss are interlinked, I can understand why they were put together in this grouping. Clauses 1 to 3 are in many ways the core of the Bill. These probing amendments question the founding premise of how the law is being changed from the 19th-century concept that currently prevails.
I will begin by explaining the rationale for amendment 1. The Bill has a core of four offences: to promise or offer a bribe; to request or agree to receive or accept a bribe; a new and bespoke offence of bribing a foreign public official in order to obtain or retain a business advantage; and failure by a commercial organisation to prevent bribery. That quartet of offences goes significantly further than previous legislation. On the one hand, it codifies the previous common-law offences, and on the other it supplements them with new offences that seek to deal with the threat of bribery to the increasingly globalised business world. They are all serious offences, and the penalties attached to them have been increased to reflect that. The current maximum penalty of seven years will be increased to 10 years for an individual, while a commercial organisation convicted on indictment of an offence under the Bill will be liable to an unlimited fine.
We all wish to ensure that the offences are applied in a proportionate and easily comprehensible fashion to make certain that the threshold for criminality is defined with clarity and common understanding. It also needs to be made certain that, by introducing new terminology to this area of the law, the Government will not force us to undertake a further redrafting exercise down the line.
Clause 1 defines the offence of bribery as it applies to the person who
offers, promises or gives a financial or other advantage to another person,
and it sets out two specific examples of behaviour. The first relates to cases in which the advantage is intended to bring about an improper performance by another person of a relevant function or activity, or to reward such improper performance. The second relates to cases in which a person knows or believes that the acceptance of the advantage offered, promised or given constitutes in itself the improper performance of a function or activity, as further defined in clause 3.
Clause 2 defines the offence of bribery as it applies to the recipient or potential recipient of the bribe, and distinguishes four separate instances. Cases 3, 4 and 5 require that the individual
requests, agrees to receive or accepts
an advantage. It does not matter whether he actually receives it, but the requirement must be linked to the improper performance of a relevant function or activity by the individual, or someone else, receiving the benefit. Case 6 requires improper performance by an individual or another person where the individual in question requests it, assents to it, or acquiesces in it in anticipation or in consequence of a request, agreement to receive, or acceptance of an advantage.
Clause 6 creates a separate offence of bribery of a foreign public official. Unlike the aforementioned clauses, clause 6 covers only the offering, promising or giving of bribes, and not the acceptance of them. The person giving the bribe must intend to influence the recipient in the performance of his functions as a public official, and must intend to obtain or retain business, or a business advantage.
Clause 7 creates an offence of failure of a commercial organisation to prevent bribery. The offence will occur when a person associated with a commercial organisation bribes another person with the intention of obtaining or retaining business for, or an advantage in the conduct of the business of, the commercial organisation. The clause provides for a defence where the commercial organisation can show that it had adequate procedures in place to prevent such associated persons from committing bribery offences.
That overview is necessary because, when considering the amendments, it is important for members of the Committee to have at the forefront of their minds the breadth of the new offences. The debate in the other place on our proposed amendments was extensive but inconclusive. Much is owed to the noble and learned Lord Lyell, a distinguished former Attorney-General, for the comprehensives of his speeches on the issue. Through my following arguments, I am looking to move the debate on from the point reached in the other place.
My amendments are designed to initiate debate and consideration of the criminality threshold required for the new offences under the Bill. The Governments response in the other place lacked, to my mind, absolute persuasiveness, so I tabled the amendments to elicit from the Under-Secretary a refinement to the justification for the use of impropriety over corruption. Russell on Crime, a leading text on the criminal law, defines bribery as
the receiving or offering of any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity.
The Compact Oxford English Dictionary defines to bribe as to
dishonestly persuade (someone) to act in ones favour by paying them or giving other inducement.
However, the draft Bill received from the Law Commission and the Bill we have now use merely the concept of impropriety as the benchmark for the offences.

Oliver Heald: My concern is that without the words that my hon. Friend is proposing, which import the idea of corrupt intent, we are left with the rather vague terms of improper or impropriety. I looked in a dictionary and improper means indecent, irregular or incorrect, whereas impropriety means unsuitable or slightly improper behaviour. Given how seriously we have always viewed corruption and bribery, to have words with such weak connotations risks widening out the category so that all manner of civil wrongs are potentially included; however, they do not get to the nub of the criminal behaviour that people have traditionally associated with bribery and corruption.

Jonathan Djanogly: My hon. Friend makes a very important point, which I shall come to. What he says is important not only in itself, but in terms of the practical application. One of the reasons why it is so important to continue the debate on this issue is that, although the Joint Committee examined the law relating to it in great detail, as we pointed out in our report, we did not have time to look at how that law should be applied. I have tabled new clauses, and amendments to later clauses, that give specific instances that will enable us to examine the problems of criminality that my hon. Friend has rightly mentioned.

John Howell: I totally agree with my hon. Friend that the use of improper in the Bill brings in

Nicholas Winterton: Order. I should have said, I call John HowellI apologise. The Chair does not often apologise.

John Howell: Thank you, Sir Nicholas; I am grateful to be making history in your last Committee.
I was saying that I agree with my hon. Friend that one of the difficulties with improper is that it brings civil cases within the remit. Is it not also nonsense that, as I understand from the Joint Committee, for improper to have a proper place in the legislation we will need a whole lot of guidance to explain it?

Jonathan Djanogly: My hon. Friend makes a very important point on a matter that the Joint Committee reviewed, and it agreed with his position. We will be debating the vital need for guidancethe need to explain to companies not just the law, but how it will be applied in practice. That will be a key issue, and we will return to it in later debates.

Jeremy Wright: It is also right that we recognise that, whether or not impropriety is the right measure of behaviour here, it describes the behaviour of the person receiving the bribe, and my hon. Friends amendments rightly consider whether we should qualify the behaviour of the person giving the bribe.

Jonathan Djanogly: Yesmy hon. Friend makes a good point. To some minds, inherent in the offence of bribery, as clearly indicated by the definitions my hon. Friend the Member for North-East Hertfordshire read out earlier, is an element of criminality greater than impropriety. That issue was debated at some length in the other place, and we can review it in this House. A constituent element of such actions must be that they are committed in a manner that is dishonest and/or corrupt. Much evidence was heard before the Joint Committee and in the other place showing that the concept of corruption in current law is in disarray and that the case law is conflicting.
Such case law spans more than 150 years, with the earliest decision being in Cooper v. Slade in 1858 right through to the 1999 case of the Crown v. Harvey, and reflects the fact that the concepts required to establish the criminality involved in corruption offences are much more complex and consequently more difficult to express than those in, say, an assault case. Yet I suspect that the layman would consider that lawyers were splitting hairs over terminology and syntax, and that underpinning all such activities is an element of dishonesty that will be self-evident when present in a case in a court of law.
Judicial interpretation has defined corrupt in the following ways. In Cooper v. Slade, which concerned bribery at elections, corruptly did not mean dishonestly but
purposely doing an act which the law forbids as tending to corrupt voters.
In the Bradford election case in 1869it is surprising that all these bribery cases seem to concern electionsit was held that corruptly was not otiose and had to be given some meaning that was akin to an evil mind. In the Lindley case of 1957, which concerned bribery of company employees, corruptly was held to mean
to weaken the loyalty of the servants to their master and to transfer that loyalty from the master to the giver.

David Howarth: Is not the case law the hon. Gentleman refers to exactly that which makes it clear that the word corruptly should not be put on to the statute book?

Jonathan Djanogly: Arguably, the answer is no. I think it fair to review how the word corruptly developed to see what the existing law is and to decide whether we should change it. If the hon. Gentleman disagrees I shall be pleased to take another intervention.

Oliver Heald: But surely the word corrupt is the proper term to be used. The cases show that on some occasions, courts have decided there is an element of dishonesty and corruption; on others, they have decided that it is more an act of unfaithfulness. However, it is clear from all the research that corrupt is a term that people understand. It can have one connotation in some instances, and another in others, but corrupt is a British word that is understood by British people.

Jonathan Djanogly: My hon. Friend makes a fair point, which we will look at in a bit more detail. He mentioned that others have different views of the word corrupt. The other place did not look at that issue, but I have and I will examine how other countries have dealt with it.
In the Calland case of 1967, corruptly meant
dishonestly trying to wheedle an agent away from his loyalty to his employer,
so if the defendants actions amounted to sharp practice and not dishonestysomething to be borne in mind when considering the definition of improperhe was not guilty of corruption. In the Smith case of 1960, in which
the Court of Appeal approved the dictum of Willes J in Cooper v. Slade,
Lord Parker held that
corruptly...denotes that the person making the offer does so deliberately and with the intention that the person to whom it is addressed should enter into a corrupt bargain.
In the Wellburn case of 1979,
the Court of Appeal again approved the words of Willes J, taking the view that corruptly was an ordinary word, the meaning of which would cause a jury little difficulty.
I think that that was the point my hon. Friend the Member for North-East Hertfordshire just made.
None of those cases deviates significantly from the idea that there is a core element of criminality that is greater than mere impropriety. However, they appear to show that there is a standard definition of corruption that would also be testing. I respectfully echo Lord Lyells assertion that juries understand wellI think that this is the assertion made by my hon. Friendwhat is meant by dishonesty and by corrupt and that, regardless of the wording of the Bill, they will be reluctant to convict an individual unless they are satisfied that the underlying conduct was dishonest or corrupt.
The fear, though, is that we may, with the proposed test of impropriety in the Bill, have pushed the boundaries of the offence too wide and at the same time provided no more clarity for juries than the current law does. I strongly support the view of Lord Lyell when he stated that
provided the prosecution can marshal and present the basic facts, the dishonesty or corruption of the conduct usually sticks out like a sore thumb.[Official Report, House of Lords, 9 December 2009; Vol. 715, c. 1102.]
When the Bill is enacted and first falls on to the desk of practitioners outside the walls of this place, their primary source of statutory interpretation will be the natural and ordinary meaning of the words that we, in Parliament, have chosen to include in the Bill. The words were are considering here are principally corruption and improper or impropriety. I trust that hon. Members will agree that, to determine the ordinary meaning of those words, Shorter Oxford English Dictionary is as appropriate a source as any. The word corruption in the area of criminality when viewed as a verb gives us the definition
to induce to act dishonestly or unfaithfully...to bribe.
If we compare that with the definition of improper from the same edition of the dictionary, the difference in breadth between the two concepts is significant. Improper, as defined in the Shorter Oxford English Dictionary, has three meanings.

David Howarth: Before the hon. Gentleman gets into the meaning of the word improper as defined by the dictionary, why does he not take up the meaning of the word improper as defined by clauses 4 and 5? It is not a problem that we have to refer to the dictionary, when it is in the Bill.

Jonathan Djanogly: As I said, the interpretation of the Bill will be dependent on previous case law and what juries have done in the past. We cannot detach it from what has happened in the past.

Oliver Heald: But does my hon. Friend accept that if one were a member of a jury and somebody said that improper performance was defined as a relevant function that
is performed improperly if it is performed in breach of a relevant expectation, and is to be treated as being performed improperly if there is a failure to perform the function or activity and that failure is itself a breach of the relevant expectation,
that could be slightly tricky?

Jonathan Djanogly: My hon. Friend has nailed the point as well as I ever could. Back to the definition in the Shorter Oxford English Dictionary, which, given my hon. Friends intervention, may actually be something that people will want to look at. It has three meanings:
incorrect, inaccurate, irregular, wrong...unsuitable, inappropriate
and
unbecoming, unseemly, indecorous.
A simple comparison of the plain English meaning of the two words shows, therefore, a very broad gap between the two groups of behaviour that would be caught by the different constructions. As it standsit is important that we understand thiswe could be criminalising behaviour that may simply be unbecoming or unseemly, the so-called sharp practice that the judgment in Calland specifically distinguished from dishonesty. I suggest to hon. Members that such behaviour may, in certain circumstances, be a far cry from what a lot of people currently understand to be bribery. On the other hand, to cite Lord Lyell, the Law Commission reports that the meaning of corrupt is understood by 95 per cent. of the population. Jurors are quick to see the backhander and are quite ready to convict. Has the Minister had the opportunity to read the letter to the Committee from the Director of Public Prosecutions, which was referred to by Lord Lyell? It states that in the last 15 years, the concept of corruption has not caused jurors a problem, yet in at least 10 of those years, bribery has been a major concern for the DPP.
Returning to my previous comments on the differences in judicial interpretation of the term corruption in reported case law, it is a matter of concern that we are in danger of perpetuating in the Bill an academic legal point that in reality does not cause jurors any problems or hinder prosecutions. The Earl of Onslow concisely summarised the basis of jurors ease with the terminology when discussing facilitation fees in the other place. He said that
it is an area which slides. You know it when it is there, but it is very difficult to define a boundary.[Official Report, House of Lords, 7 January 2010; Vol. 716, c. GC32.]
The question is whether the concept of impropriety, as currently drafted, significantly detracts from the inherent understanding of what bribery is, and could instead impose on jurors a more opaque and confusing term that ultimately runs counter to the Bills intention.
These are probing amendments. I do not seek to do away with the test that was so ably drafted by our parliamentary draftsmen, or to undermine the work of the Law Commission, which needs be recognised because it did a magnificent job. Instead, I hope that hon. Members will see this debate as a way to strengthen the offences under the Bill and to provide workable legislation by giving the Minister the chance to offer added clarity and practicality in relation to the use of the word improper. I have explained to some extent that that word has not yet been explained to the desired degree.
Lord Lyell touched, both in the House of Lords Grand Committee debate and on Report in the other place, on the legal position on criminalising bribery in other common law jurisdictions in the world. The issue, however, was not addressed to any great extent in the other place, so I would like to explore it in more detail. I am thankful for the minutes of evidence provided to the Joint Committee on the original Corruption Bill in 2003. Having reviewed the Hansard record of the debates in the other place, I do not think that sufficient consideration was given to the issue in the Governments response. By giving such consideration, I hope that we will be able to demonstrate the fact that, in legal systems that are directly aligned with our own, a need for dishonesty or corruption was thought crucial. The Government asserted in the other place that the concept of acting corruptly is
a vague and unhelpful construct that has spawned a number of different and often inconsistent interpretations from the courts.[Official Report, House of Lords, 2 February 2010; Vol. 717, c. 121.]
However, it seems that every other legal system aligned with the English system has seen fit to add an element of dishonesty or corruption and has not been put off by concerns about clarity or the deductive powers of jurors.
The statutory provisions in Australia, for instance, apply only to the bribery of public officials. Sections 141.1 and 142.1 of the schedule to the Criminal Code Act 1995 make it an offence to give a bribe or corrupting benefit to a Commonwealth public official, and for a Commonwealth public official to receive a bribe or corrupting benefit. Under sections 141.1(1) and 142.1(1), a person is guilty of an offence of giving a bribe or corrupting benefit to a Commonwealth public official if he or she dishonestly provides a benefit, causes a benefit to be provided, or
causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made.
In addition, the person must do that with the intention of influencing a Commonwealth public official in the exercise of his or her duties. The maximum penalty for the bribery offence is 10 years imprisonment, and that for the corrupting benefit offence is five years.
Furthermore, sections 141.1(3) and 142.1(3) state that a Commonwealth public official is guilty of receiving a bribe or corrupting benefit if he or she dishonestly
(i) asks for a benefit for himself, herself or another person; or
(ii) receives or obtains a benefit for himself, herself or another person; or
(iii) agrees to receive or obtain a benefit for himself, herself or another person.
In addition, the public official must do that with the intention that the exercise of his or her duties will be influenced, or the intention of inducing, fostering or sustaining a belief that his or her duties will be influenced. The maximum penalty for the bribery offence is 10 years imprisonment.
In Canada, the offence relates to public officials. Section 119(1)(a) of the Canadian criminal code makes it an offence for a holder of a judicial office, or a Member of Parliament or of the legislature, to receive a bribe. It provides that an offence will be committed if an official corruptly accepts, obtains, agrees to accept, or attempts to obtain any benefit for himself or herself or another person in respect of anything done or omitted to be done by him or her in his or her official capacity. Section 119(1)(b) of that code makes it an offence for a person to bribe a holder of judicial office, or a Member of Parliament or of the legislature. It provides that an offence will be committed if a person corruptly gives or offers any benefit in respect of anything done or omitted, or to be done or omitted by him or her in his or her official capacity, for himself or herself or another person.
In South Africa, the Prevention and Combating of Corrupt Activities Act 2004 criminalises corruption in both the public and private sectors, including by foreign officials. Section 3 contains a general offence of corruption that makes it an offence for any person directly or indirectly to accept, agree, give, or offer to give to any other person, any gratificationwhether for his or her own benefit or notin order to act personally, or by influencing another to so act, in a way that amounts to an illegal, dishonest, unauthorised, incomplete or biased exercise of any powers, duties or functions arising out of an obligation; a misuse or selling of information or material acquired in the course of the exercise of any powers, duties or functions arising out of an obligation; the abuse of a position of authority; a breach of trust; or the violation of a legal duty or set of rules; or in a manner that is designed to achieve an unjustified result, or that amounts to any other unauthorised or improper inducement to do or not to do anything.

John Howell: My hon. Friend has, for obvious reasons, cited three English law jurisdictions, but is not the problem with the Bill that one of its major influences is the Organisation for Economic Co-operation and Development, a body that deals not just with English law jurisdiction but a whole range of jurisdictions, including some that have sui generis types of legal establishments? Therefore, we are seeing an attempt to compromise between a whole number of different legal systems, some of which take a radically different and incompatible line with English law.

Jonathan Djanogly: My hon. Friend makes a good point. I would pick him up on one thing: I would not say that the Australian or Canadian systems were subject to English jurisdiction. He probably meant to say English common law practice. On that, he would be absolutely right.

John Howell: Just to confirm, I have not gone back to a period of longing for the British empire once more to rule Australia and Canada.

Nicholas Winterton: More is the pity!

Jonathan Djanogly: I thank my hon. Friend for that important clarification. On the OECD and his broader argument, he makes a fair point. The OECD came out with a set of constructs that we bought into by treaty, with which the Conservative party agreed. We have spent the past year, since the signing of that treaty, calling on the Government to bring forward this Bill, in order not least to comply with our international obligations, which we have not done recently. That it is now being brought forward is welcome.
My hon. Friend is right that ultimately the construct of the OECD formula is not going to tie in with every national route towards dealing with bribery. To some extent, that means there is give and take. There are problem areasnot least in relation to the role of the Attorney-Generalwhere some very English concepts have stood the test of time, and we will reach an important debate on them later. To answer his question specifically, yes, there will be areas where we will want to pick up on our position regarding the OECD and where we feel that a compromise has not yet been reached in the right manner.
To get back to the subject of foreign jurisdictions, will the Minister clarify why the UK proposes to put on the statute book a criminal offence that, in its current form, has no requirement for a guilty mind? As every undergraduate law student can recount, a core premise of English criminal law is the requirement for both mens rea and actus reus. Although I accept that there are crimes that are strict liability, we need clarification of why we require a law that will make someone a criminal without a guilty mind? Might there be a danger that we will misguidedly alter that basic tenet of English law in an attempt to dumb down the law to help jurors? More than that, will we make things easier in reality by using the concept of improper conduct? I will be interested to hear why the Minister believes that the concept of impropriety is any less complex for the average lay juror than corruption.

David Howarth: I am a civil, not a criminal lawyer, so I am no expert on this, but clause 1 includes the notion of intent, as do clauses 2 and 6. I do not understand why the hon. Gentleman says that the Bill misses out the concept of mens rea.

Jonathan Djanogly: Well, it does not include it to the degree that the offence of corruption impliesit is a different level of offence.
I would like to address some of the responses that the Government offered when they opposed such amendments in the other place. Their objections may be summarised as having two distinct veins: first, that prosecutorial discretion will serve to mitigate any disproportionality that arises as a consequence of the breadth of the new requirement of impropriety to criminalise acts that would previously not have been an offence; and, secondly, that the concept of corrupt is more complex and vague than impropriety.
I shall begin a review of proportionality with a consideration of the example cited by Lord Lyell on Second Reading and Report in the other place, which was supported by Lord Williamson in Grand Committee. I would struggle to provide a better or more concise example of the problem so, if you will permit, Sir Nicholas, I will quote directly from Hansard. Lord Lyell said:
the hypothetical example that I give is of someone who has bought an aeroplane ticket. He arrives at the gate and is asked for a bribe in order to get his boarding pass. He is absolutely entitled to get the passhe has paid for it and would expect to get it as a matter of coursebut he finds that he cannot get on to the aircraft without handing over a bribe. He has a choice. He can say to the chap who is demanding the bribe, This is utterly wrong. You shouldnt do it. If you won't let me on to the aircraft I shall go and report you at once, or he can pay over the money demanded, get on to the aircraft and, one hopes, report the person when he lands, or perhaps even report the person to the cabin crew.
The noble Lord went on to highlight the problem that such an individual would face under the Bill:
The difficulty is that under the Bill as drafted the offence is committed by the payer of the bribethe person from whom the bribe has been wrongly and corruptly demanded by the official standing at the boarding gate. Simply by handing over the money, he is giving the bribe. Of course, it would depend on the detailed facts of a case but I think that, if the Bill were drafted so as to require a guilty mind, a jury would be very reluctant to convict someone in those circumstances. On the wording of the statute the jury would be obliged to convict, although it may be reluctant to do so as juries do not like a sense of injustice in any event...The persons protectionthis is how the Government have put it so farlies in the sensible discretion of the prosecutor not to prosecute in those circumstances as there would be strong mitigation. [Official Report, House of Lords, 2 February 2010; Vol. 717, c. 118.]
I can confidently say that I suspect a British businessman or tourist somewhere around the world is experiencing a similar situation as we speak.

Robert Syms: I am sorry to interrupt my hon. Friends introductory remarks, but what would happen if a business was asked to pay a ransom for men whom were working for it abroad but were taken hostage? Presumably that would count as a bribe, even though the individuals to whom the company had a responsibility were in difficulty.

Jonathan Djanogly: The Minister might wish to respond to my hon. Friend but, as I interpret the Bill, that would constitute a bribe and would be subject to prosecution. I have tabled an amendment to exclude extortion so that we can have a debate about that very subject.

David Howarth: How would that example come within clause 3(2)?

Jonathan Djanogly: Perhaps the hon. Gentleman could explain how it would not.

David Howarth: Presumably, those who kidnap others are not engaged in a function of a public nature. I do not think it would be called business or employment, or even activity performed on behalf of a body of persons.

Jonathan Djanogly: To be honest I do not know. My hon. Friend the Member for Poole did not go into the circumstances in that amount of detail. That might or might not apply.
I do not condone such behaviour; I am simply giving a statement of fact. My concern is that the Bill could criminalise individuals who are at the mercy of such petty tyrants across the globe in one broad stroke. There are a multitude of situations that one can imagine in which such actions may occur without the corrupt element of the offence that is currently required by law, but changing the test to impropriety would see such individuals liable to imprisonment.
The Governments position, as stated in the other place, is that these situations can safely be left to the prosecutor and that proportionality will win through. I have considerable respect for prosecutors, but I am reluctant to allow Parliament to wash its hands of this issue and to leave it to the prosecutors alone, not least because not only does that leave the law open to differing applications, but it unnecessarily increases prosecutors work load.
One of the aims of this Bill is to provide certainty but, as it stands, the idea of prosecutorial discretion on which the Government rely to counter arguments that impropriety represents an unworkable test flies in the face of that. The difficulty for businesses is obvious. It cannot be correct that businesses instruct employees that a certain course of action, although theoretically falling foul of the legislation, may nevertheless proceed because prosecution is unlikely.
Such ambiguity and uncertainty will inevitably lead to problems as a two-tier system develops involving actions that will be caught and prosecuted, and acts that individually are too small to be prosecuted. When taken collectively, the attitude that bribes are acceptable, as long as they are below a certain de minimis level, could be corrosive to the very foundations of the Bill and one of its central aims.
To avoid that situation, the Government face two options: first to accept that an inherent element of the offence must be corruption rather than impropriety, thus ensuring that the mens rea element of a guilty mind is central to the offence; or, secondly, to go for the American and, I believe, OECD-approved route and provide for a specific exclusion for so-called facilitation payments in the Bill. This is not the last that the Committee will hear from us on facilitation payments, but for now I wish to move on and consider one further difficulty with the Governments position.
The inherent problem with prosecuting offences of bribery and corruption is not that juries are reluctant to convict or incapable of understanding the offence, but that the activities that give rise to these cases happen in the shadows, and the great difficulty is getting the evidence in the first place. It is sometimes forgotten that there are two requirements before one can prosecute in any case: sufficient evidence to give rise to a realistic prospect of conviction before a jury; and that it is in the public interest to prosecute, which will depend on a large number of factors but might relate to the trivial nature of the offence or the person committing the offence.
Tipping someone to do something slightly out of the ordinary, such as having a doorman hail a cab in the rain while one waits inside, might be improper behaviour, but do we really wish to criminalise such activity? The argument goes that if the word corruptly was inserted, such behaviour would not be a criminal offence. That was noted in the other place, where it was said that the behaviour of a person
who gives a tenner just to get personal advantage is not attractive. It is rather improper: I would not like to be seen doing it. But is it the offence of corruption? Is that what we are dealing with here? That needs to be clear in the Bill and not simply left to prosecutorial discretion.[Official Report, House of Lords, 7 January 2010; Vol. 716, c. GC26.]
I understand that the Governments reliance on prosecutorial discretion plays a role at the public interest stage, but it skews the consideration of whether an act is a crime, which is more fundamental than any issue of proportionality. We must not forget that the Joint Committee was presented with evidence that prosecutions fail not as a result of confusion over the law, but because of a failure to meet the first limb of the testbecause of a lack of evidence. In its evidence to the Joint Committee, the law firm Herbert Smith succinctly summarised the problem by saying:
We fail to see why public policy should require that an individuals actions be criminalised and for the individual then to rely on a prosecutor's discretion, on whether with hindsight, the public interest requires a prosecution.
On Second Reading and in the other place, the Government rightly relied heavily on the Joint Committees report. However, I would be interested to hear from the Minister why they have been selective and ignored the recommendation in paragraph 36 of that report, which states:
We do, however, acknowledge the concern that conduct which ought to be viewed as a civil wrong may, in future, be criminalised. The limited time for completing our inquiry has prevented us from exploring possible solutions to this problem, although we note the potential for developing an effective avoidance of doubt provision. The Government must address this issue before introducing the Bill into Parliament in order to minimise the need for reliance on prosecutorial discretion and maximise certainty for all those who will be asked to comply with, and enforce, the new law.
Will the Minister please explain the Governments decision to rely so heavily on prosecutorial discretion in the context of concerns that the concept of impropriety allows for so-called offence creep, and given that the Joint Committee was so emphatic about its concerns and the need for an alternative? Why have the Government not produced an alternative in the Bill?
I shall now directly address the Governments argument that the concept of corruption is too complex and vague for juries to understand or apply. I have touched on that at various points in my remarks, but I would like to add two further points that are central to the Governments consideration of the issue. In the other place, Lord Bach stated that the Government argued that the concept of acting corruptly
has proved to be a vague and inherently difficult concept. Courts have expressed differing opinions on whether it involves dishonesty or doing an act which the law forbids as tending to corrupt.[Official Report, House of Lords, 7 January 2010; Vol. 716, c. GC34.]
However, the evidence from the Director of Public Prosecutions, and from many of those who have held positions as Law Officers over the past three decades in the other place, suggests that no prosecution has failed and no conviction has been quashed on the basis of whether dishonesty ought to be included. The Government have relied heavily on the Law Commissions report to justify a change to a test of impropriety, but I found no evidence in that report that the definition of corruption was ever a practical problem for prosecutors or jurors. I would be interested to hear whether the Minister has any empirical evidence that did not make it into the Law Commissions report.
Secondly, the Government have suggested that jurors find the concept of corruption, which has been in the current bribery lawin common law and in statutefor over a century, too difficult to fathom and to apply to the facts of a given case. I find that view of the deductive power of jurors somewhat confusing and contradictory, especially when the Government, through Lord Bach in the other place, have stated:
Juries are perfectly capable of dealing with concepts such as good faith, impartiality and position of trust when considering them in the context of a particular case, so these terms do not require definition.
Will the Minister explain how those terms differ from, or are easier for a jury to interpret than, the word corruption?
I have been responding to some of the Governments prior arguments against such amendments, but I shall leave the last word to Lord Lyell, whose erudite and diligent work in the other place has provided such a solid bedrock for much of my work on this issue. He said:
It is often said in academic discussions and by the Law Commission, for which I have great respect, that there have been inconsistent decisions on this. I have looked at all the cases and think that that is rather overstated. The DPP has told us in writing that this has caused no practical problems in the past 15 years and I believe that has been so for much longer. The Minister has explained that it is all down to prosecutorial discretion. My point, which I will not press now, is that that is not good enough. This is a serious offence.[Official Report, House of Lords, 2 February 2010; Vol. 717, c. 121-123.]
I have spoken at some length on this issue. I am grateful to you, Sir Nicholas, and to the members of the Committee for hearing me out on a serious issue that is core to the essence of the Bill. I hope not only that I have been comprehensive, but that I have encouraged the Minister to look a little bit harder at the issue. The word corruption has been much debated in academic legal circles, but it has been a requirement in common law and all forms of this offence to date. There is no evidence to suggest that the concept causes jurors any particular difficulty. In fact, the DPP has written to confirm that no case has failed in the past 15 years as a result of confusion over the concept.
We have heard from the Government in previous debates about this issue that the problems that we have outlined are not problems, because the consensus decision of the Law Commission and the Joint Committeeon which I hasten to add I was proud to serveupheld the idea of impropriety. However, the Joint Committee was extremely pushed for time and failed to consider the Bill as fully as it would have liked. Even in that tight time frame, however, we managed to express concerns that impropriety was so broad a concept that it captured tortious wrongs and criminalised actions that would not previously have been considered as bribery. The Joint Committee warned against that situation when it said:
The Government must address this issue before introducing the Bill in Parliament in order to minimise the need for reliance on prosecutorial discretion and maximise certainty for all those who will be asked to comply with, and enforce, the new law.
Will the Minister explain why so much store has been put on the Joint Committees support for impropriety, when its advice, which appeared as I have just cited, has been overlooked? Furthermore, it would seem as though corruption or dishonesty is a requirement for such an offence in every common law jurisdiction in the world, with the possible exception of the federal law in one state of AustraliaVictoria. Canada, Australia, South Africa, New Zealand and the United States, however, have the guilty mind element. Will the Minister justify how it can be appropriate to buck that trend when unifying international standards on bribery is central to the Bills rationale?
I will now move on to clause 6 and the offence of bribing a foreign public official. The aim of amendments 7 to 10, which are probing amendments, is to focus on the intention of a paying person, P, and the nature of the payment as a criminalising aspect of the offence, and by so doing to consider that it might be easier to retain the concept of proportionality in prosecutions. Further, that could provide a clear benchmark against which an individual can judge their behaviour in foreign lands. I have used a number of differing terminologies to convey what I hope is the same point in a manner that avoids the problems already discussed on the use of corrupt or improper. In effect, I suggest that if the use of the word corrupt is not acceptable for clauses 1 to 3 then, as an alternative, consistency should be applied by including the word improper in clause 6.
Clause 6 turns on the question raised by subsection (3)(b). Whether a payment by person P to foreign official F constitutes a bribe will depend on whether F was permitted or required by written lawthe written law of the country in which the bribe takes placeto accept a payment. There is no question of what motivated P or what his intention was, beyond securing himself a business advantage. The amendments would change the clause so that the offence was applicable when a bribe of improper financial or other advantage was intended corruptly to influence a foreign public official to obtain an undue business advantage. As it stands, the intention of P, the payer of the alleged bribe, does not matter, but our amendments suggest that it ought to matter.
The concern is that it is not enough to say that all that P must have intended was to secure some business or business advantage, and that whether he is guilty of bribery rests on the interpretation of local written law. No question is asked about whether P was acting improperly, but merely whether the recipient official went against what was permitted or required by written law. The Government have put forward the principle that Ps ignorance of the local law should not be a defence. However, will it always be possible to say whether a local law was broken? In essence, the amendment would circumvent much of the ongoing debate on issues such as facilitation payments, the knowledge of foreign laws and the possibility that a written provision simply might not exist in the jurisdiction to cover the custom or practice.
Yesterday, the CBI sent a briefing on the Bill stating that the wording of the clause 6 offence
omits the notion of corruption, dishonesty or impropriety. This should be required as part of the new offence. Failure to do so would mean that criminal liability would arise even in circumstances where the activity is on any view perfectly proper. It cannot be fair to criminalise honest company behaviour. A response that relies on prosecutorial discretion under the current wording of Clause 6 would not, we believe, be enough to address this particular shortcoming.
This has two key implications. Firstly, businesses either have to commit to no promotional expenditure, which is clearly unsustainable, or openly condone criminal acts by their staff on the basis that they probably will not be prosecuted, which is also unsustainable. Secondly, any proper promotional expenditure would, irrespective of prosecutorial discretion under the Bribery Bill, be a breach of s328 of the Proceeds of Crime Act unless companies obtain consent to make each payment from the Serious Organised Crime Agency. This is plainly unworkable.
Clearly the CBI has a serious issue with clause 6.
In all other common law jurisdictions, corruption law requires an element of corruption or dishonesty in relation to the bribery of public officials. I have explained the positions in Australia, Canada and South Africa.

Robert Syms: The British Broadcasting Corporation and many other public corporations have many people abroad. There are occasions in the third world when some kind of payment has to be made to unblock things. Would the director-general or the head of news be prosecuted in such circumstances? Have we received any information from journalists from the BBC, ITN or other organisations who, when abroad, might occasionally make payments to secure a particular objective?

Jonathan Djanogly: I have not been advised of any such situations, but one hears stories about what happens on the ground from business and media people. Facilitation payments, which are usually small sumslet us call it grease moneycan be handed over to make something happen.

Robert Syms: Many journalists who were deployed in Bosnia had to make payments to get through checkpoints, whether they were manned by irregular forces or police officers, or were part of a particular state. Presumably, in future, BBC journalists will be the only ones who are not able to get through such checkpoints.

Jonathan Djanogly: I certainly think that organisations such as the BBC will have to consider carefully the situations in which their staff can provide facilitation payments, because they will be illegal under the Bill. They will rely on prosecutorial discretion, which is whyas we shall come to laterthe question of the guidance given to companies is vital. I thank my hon. Friend for raising that important issue.
Our primary concern is that the Bill in its current form will put us in danger of disadvantaging British businesses. The questions that were posed about that in the other place went unanswered by the Minister. For example, Lord Henley said:
Have the Government made an assessment of any impact that Clause 6 might have on British companies operating abroad? Will it, for example, disadvantage them in cases where other OECD nations operate according to local custom while their UK counterparts must strictly observe the local written laws?[Official Report, House of Lords, 7 January 2010; Vol. 716, c. GC40.]
That is the key issue. For the act to be permissible, it has to be allowed by the local written laws in that country. Even when the habit of a country might be to allow facilitation payments, or even to encourage them, it is unlikely that that would be written into those countries legal systems, which shows the problem with the drafting. Will the Under-Secretary now address the question posed by my noble Friend Lord Henley?
Paragraph 34 of the explanatory notes states that the offence of bribing a foreign public official
closely follows the requirements of the OECDs Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
I will read to the Committee article 1 of the OECD convention, however, as it contains one important element:
Each Party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.
The OECDs guidance attached to the convention notes, at paragraph 5, a definition of other improper advantage. Of course, our amendments would insert such a provision. The guidance says that such an advantage
refers to something to which the company concerned was not clearly entitled, for example, an operating permit for a factory which fails to meet the statutory requirements.
Will the Under-Secretary explain why the Government saw fit not to copy this OECD requirement for impropriety to be relevant? We are concerned thatas is typical of many of the Governments attitudes towards compliance with external legal obligationsthe Government are gold-plating these OECD laws. By doing so, they are enacting a law that is at the most prohibitive end of the spectrum allowed under the relevant international agreements. They could be hamstringing UK businesses from operating on a fair playing field, which is an issue that the CBI and the ICC have also picked up.
Lord Tunnicliffe touched on that issue briefly in the other place when he said:
However, we believe that the offence...fully achieves the purpose and effect of the offence in the convention as drafted.[Official Report, House of Lords, 7 January 2010; Vol. 716, c. GC42.]
I agree with him. If anything, the Government have gone further than the convention, and broadened the offence to catch behaviour beyond that originally intended. In so doing, they might put British business at a significant disadvantage. The Government have a tendency to take a myopic view when it comes to competition in the business world. I fear that the lack of time given to reviewing the practical application of the Bill is indicative that the Government would be happy to let British business pay the price for their discomfort over not properly engaging with the OECDs convention and their subsequent over-zealous adherence to international legal commitments as an attempt to make amends. By my count, there are 34 other signatories to the convention. Through clause 6, are the Government opting to start British business in 35th place on the grid in the race for international business? How many of the other signatories to the convention have also done away with the improper element of the offence?
We will debate the Bills various implications later, and I will argue that given the toughness of its provisions for business, we will be at a huge disadvantage unless the Government raise their game, in terms of getting competitor countries to apply and enforce such laws. When similar amendments were debated in the other place, the debate centred on the issues of facilitation payments, having a carve-out, and what would be considered reasonable hospitality. I do not wish to go into those issues now; I will save them for the debate on my proposed new clauses. However, I wish to touch on one aspect that impinges on the matters and amendments under discussion.
For the sake of argument, let us suppose that the Bill was passed with no provision for facilitation payments. Clause 6(3)(b) makes explicit reference to written law, which means that the established custom and practice of a foreign country would not be taken into account when prosecuting. Lord Henley gave an example in the other place that illustrates the point that I would like to make. He said:
if it is established practice for a ships captain to pay a harbourmaster in a foreign country what we might euphemistically call an unofficial fee to dock and unload, I am sure that the Minister would agree that that would amount to a facilitation payment.[Official Report, House of Lords, 7 January 2010; Vol. 716, c. GC40.]
As the Bill stands, that captain would be guilty of an offence and liable to imprisonment. He would have to rely on prosecutorial discretion to save him from jail. How is the prosecutor to operate his discretion?
We have discussed in previous debates the need for two elements if a prosecution is to be successful: the evidence to prosecute and a public interest in the prosecution. The discretion of the prosecutor is limited only to whether he can argue that prosecution is not in the public interest. He may be able to do that, but the decision on where he draws the line, in terms of public interest, is too arbitrary for offences of the magnitude that we are talking about, and too dependent on subjective factors. One prosecutors line of public interest may not match anothers, particularly when different prosecuting agencies are making the call on whether to prosecute.
We will return to that issue when we debate how the role of the Attorney-General has been split between a variety of prosecutors, all of whom may have different positions on what is in the public interest and what should be prosecuted. That could lead to an inherent uncertainty and a fundamental problem for those operating in foreign lands. It cannot be ideal for the shipping business to instruct the captain that the paying of the fee, while theoretically falling foul of the legislation, may nevertheless proceed because prosecution is unlikely. What business wants is certainty.
The amendments endeavour to provide that certainty by focusing on the intention of P and the nature of the payment. In doing so, they provide the prosecutor with a greater opportunity to act proportionally and with a better publicised consistency. Furthermore, they shift the emphasis back on to the captain. If there is no impropriety or corrupt element to his motive, he can be more confident that he will not face prosecution.
The Government have suggested that that would add another element to the offence, which would make matters more difficult for prosecutors, but that is debatable. If anything, the amendments more properly reflect the wording and intention of the OECD convention. Furthermore, they would mean that British business might not be hamstrung from the outset and could compete, in the absence of a specific facilitation payment carve-out, on a similar footing to its international competitors without fear of breaking the law, or without looking over its shoulder constantly in fear of prosecution.
I have extensively reviewed the debate that took place on the amendments on Report in the other place. Towards the end of the debate, Lord Tunnicliffe responded to a question from Lord Lyell by stating that the Government intended to publish guidance. Will the Under-Secretary please elaborate on that? Will the guidance be separate from the corporate offence guidance, or will it be part of it, and when can we expect it to be available?
In the other place, the Government said that the offence was deliberately formulated so as to present a robust response commensurate with the gravity of the mischief towards which it is directed, namely bribery on the part of business interests in the developed world that are seeking lucrative public sector contracts in the developing world. The offence is therefore drafted to prevent all but the written law of the state concerned from being irrelevant to consideration of the legitimacy of the payment.
I accept that at the top end we are dealing with systemic bribery in some sectors and countries, and that the figures involved are extremely large. The law should come down hard on those perpetuating such behaviour. However, we could be using a sledgehammer to crack a nut, particularly in the much smaller-scale, grey area, where what is required, if anything, is a scalpel rather than a sledgehammer.
The Government argued that there are two reasons for the sledgehammer approach. To ensure that I get this right, I shall quote Lord Tunnicliffes speech in the other place:
First, we wish to avoid local custom and practice being a relevant consideration. If our Bill is to make an effective contribution to the efforts at the national and international level to encourage the developing world to abandon the culture of toleration of bribery we need to provide a robust deterrent. This offence is designed to fulfil that need by, among other things, preventing local customs and practice from being prayed in aid as a defence. Secondly, and extremely importantly, the experience of prosecutors working with the current law is that it is extremely difficult to pinpoint with sufficient certainty what duties or expectations apply to any individual foreign public official. Local circumstances vary immensely.[Official Report, House of Lords, 2 February 2010; Vol. 717, c. 126.]
Our amendments do not run counter to either of those points. By refocusing the emphasis on Ps intention, the amendments could serve to strengthen the commitment to those ideas.
I have gone on at some length about the first 10 amendments, but I hope that I have explained to the Committee the importance of the amendments and the clauses to the Bill. They form the core of the Bill and of our approach to reforming the law of bribery.

David Howarth: About an hour ago the hon. Gentleman said that his amendments were probing, and he repeated that statement with regard to his later amendment to clause 6, which means that I can be very brief, as the purpose of probing amendments is to listen to what the Under-Secretary has to say about the meaning of the clauses and amendments in question. All I shall say is that if the amendments were serious, I would oppose them all. They fall into two groups. The first group adds adverbs to the statute and the second group adds adjectives. In neither case is that a good idea, because the statute already deals with the issues in question, and adding extra words to the clauses would simply add confusion.
I intervened on the hon. Gentleman on three or four occasions because there were, in essence, three points to his argument, and in each case he was wrong. First, case law on the meaning of corruptly demonstrates that the courts could not make up their mind about what it meant. That is precisely why it is not a good idea to put the word corruptly into statute. It would be better to use any word other than corruptly. To use the word dishonestly would be to introduce a panoply of legal decisions about the meaning of dishonestly or theft, so that is not a good idea either. That, presumably, is why improper has been chosen; it does not bring that baggage with it.

Jeremy Wright: I understand the hon. Gentlemans point about possible arguments over the definition of corruption, but he is not suggesting that the courts do not know what dishonestly means, is he?

David Howarth: No, I am not suggesting that, but the courts say that it is a jury question. After a long period of debate about the meaning, they ended up saying, We dont know what it means. Let a jury decide, and we do not want that, either. [Hon. Members: Why not?] Conservative Members say, Why not?, which leads me to my second point.
We need a more accurate definition of the conditions under which the crime is committed, rather than simply leaving the matter to the jury. In fact, if the argument of the hon. Member for Huntingdon is that we need the law to be clearer, I say to him: the Bill is drafted as it is precisely so that the matter is not simply left to the jury. So, the second point concerns the meaning of the word improper. The whole point of the statute is that the meaning of the word improper is put into it. We do not have to go to a dictionary to find out the meaning, because clauses 3 to 5 define it. That is precisely how the statute works. There is no need to go any further. I will leave to the Under-Secretary the task of saying what clauses 3 to 5 mean, because her remarks on that have great authority and mine have none whatever.
The third point concerns mens rea. The hon. Member for Huntingdon seemed to be under the impression that mens rea in criminal law had to import some notion of evildoing. That has never been the case. Mens rea includes the notion of intentionof intentionally doing the actus reus. As far as I can tellI am no great expert in criminal lawclauses 1, 2 and 6 include the notion of intention, so I do not think that that problem arises.

John Howell: May I draw the hon. Gentlemans attention to clause 5(1)? It says:
For the purposes of sections 3 and 4, the test of what is expected is a test of what a reasonable person...would expect.
How is that not a jury question?

David Howarth: Of course all the elements of a criminal offence are a jury question. The question is how much guidance the law gives the jury in particular cases. By breaking down the elements in this way, we give the jury a better chance of getting to an accurate answer than if we simply leave things at large to the jury in the way proposed by the hon. Member for Huntingdon.

Oliver Heald: The concern about the word improper is that it is a weaker worda less serious wordthan corrupt, or indeed bribery. There is nothing in clause 4 that disabuses one of that notion. That is why it is proposed that the words with corrupt intent be addedto ensure that we do not bring all sorts of less serious acts into the criminal sphere. Historicallyand, I think, rightlywe want to tackle corruption and bribery, not a wider range of actions.

David Howarth: The point is that clause 4, along with clauses 3 and 5, define what improper means, and that is what is put to the jury. What is not put to the jury is simply a decision at large about the meaning of the word improper. They will be told what the law is in terms. The law in terms is proposed to be what is in those clauses, so I do not think that is a problem. Adding an extra layer of complication would be a problem. As in one of the cases to which the hon. Member for Huntingdon referred, the court assumes that Parliament does not add surplusage to statutes. It assumes that words mean something. If we add the extra test, the courts will assume that that would add something over and above impropriety as defined in the statute.

Jeremy Wright: But is not the issue of impropriety connected to the behaviour of the person receiving the bribe? That is a point that I made to my hon. Friend the Member for Huntingdon a littler earlier. The argument in favour of my hon. Friends amendment 1, or indeed his amendment 2, to clause 1 is that we are refining the description of the necessary behaviour for the person giving the bribe, and that is where the mens rea gap is, if there is one.

David Howarth: I do not accept that point, because if we take case 1, clause 1 says that a person is guilty of an offence where they offer the advantage, and that person
intends the advantage...to induce a person to perform improperly.
It is the defendants intention to induce improper behaviour that is the essence of the offence, so I do not think that the point arises.
The hon. Member for Huntingdon is correct to say that clause 6 takes a different approach from clauses 1 and 2 when it comes to how impropriety, corruption or undueness are dealt with. However, in essence, clause 6 has the same structure as the rest of the law. The reason why there is no need to put undue or any such word into the definition of the offence is that clause 6 defines the illegal aspect of the act in terms of the law of the state concerned.
If someone does something to induce a foreign official to act in a particular way because of an advantage being offered to them, we work out under the clause whether that is undue by looking at whether it is permitted or required by the law of that state. That is how it is done; that is why we do not need the word undue to be added to clause.
The statute might be drafted in a way that is too elegant, too effective and too economical for those who are used to a more grandiloquent style, but it strikes me as being perfectly adequate for the purposes that it is meant to fulfil. Better than that, it is statute that will be more effective because it is clearer than the current law, which is the point of the exercise. We want to ensure that bribery is prosecuted successfully in cases when it is happening and when the fact of its existence undermines not only our reputation in the world, but the economic interests of our businesses.

John Howell: I rise on the assumption that I am the only non-lawyer on the Opposition side of the Committee. The Committee might think that that is something to be praised, but I am looking at the Bill from the point of view of someone who, in the summer, will do jury service. Perhaps I can therefore bring the jurors perspective to our proceedings.
I wish to start with the OECD background to the Bill. The great impetus on getting the Bill through the House seems to be that there is great international pressure for us to do so, and that it fits in with our obligations for the OECD convention. The commentary to the convention brings out several interesting points that amplify some of those that have already been made. It points out that the OECD convention has to span a wide universe, that its concepts are to apply to
Common Law, Civil Law, Eastern European and Far Eastern legal systems,
and that it must anticipate the future and possible newcomers to the OECD, such as
China, India, Russia and South Africa.
Obviously, it was written a little while ago.
The commentary goes on to say that liability is a matter
where concepts diverge
considerably in those countries. Since bribery is a legal construct very much in its development, the OECD negotiators, it says, opted
for a very broad common denominator indeed
in the convention.
The commentary also points outthe OECD convention itself makes this pointthat there is a distinction between criminal and civil law aspects of bribery. The convention does not rule that out; it specifically accepts that that distinction is there. However, it rules out it being its job to intervene and decide which of those is more prominent or how they should be dealt with under individual legislation around the world.
The commentary also points out that the international trend is towards wrapping up civil and criminal activities into one for simplicity around criminal responsibility. To what extent have the Government been motivated by that trend? How are they reacting to it and to the inevitable simplification that the OECD convention achieves?
The convention makes the difference between criminal and civil less distinct. Paragraph 31 of the report produced by the Joint Committee on the draft Bribery Bill gives the example of
the scenario of a senior banker being asked by a rival bank to induce his or her trading team to join that rival in return for increased remuneration.
The answer from the UK Anti-Corruption Forum as to whether that would be caught by the Bill was that it would, but that in all other circumstances it would be best dealt with in the civil courts. Therefore, we have a good example of the extension of this along the lines that the OECD took, but only for convenience rather than for instruction.
The distinction is an important one to make. From a potential jurors point of view, I have no difficulty in understanding what corruption means. However, I would have enormous difficulty, in this context, in understanding what improper meant. It could cover many different things, and I would need guidance on what should be considered improper. In my mind as a legislator and as a juror, the more legislation requires guidance, the less perfect it is.

Jeremy Wright: I, too, welcome you to the Committee, Sir Nicholas. I recall serving on a Committee under your chairmanship last week, when you suggested that it might be your last Committee in the Chair. I am delighted to see that you were wrong then, but obviously saddened to think that you might be right in saying it this morning.
I also declare an interest as a non-practising barrister in the field of criminal law. To deal with the point that the hon. Member for Cambridge made earliermuch as I regret to do this, especially in his last CommitteeI disagree with him on the drafting, particularly of clause 1. That is, I might add, an unwise thing to do generally, because he is an extremely accomplished lawyer, and he is usually right on the questions of legal drafting. However, I am not sure that he is this time, and I want to explain why I think that.
I support entirely amendments 1 and 2, tabled by my hon. Friend the Member for Huntingdonor rather, I should say, amendment 1 or amendment 2, because it seems clear that the amendments are alternatives to each other. I am agnostic as to which drafting is preferable. One of the two is desirable, because it is important to refine the intent of the person alleged to have given a bribethat is what clause 1 deals with.
There seems to be a scenario that we need to consider. The answer to it may be delivered by changing the drafting in the way that the amendments suggest, or it may, conceivably, be dealt with by the Minister reassuring me that that point is covered and by putting things on the record in Committee, which the courts will find of use when dealing with the point later.
My point of this: imagine a case where an individual is desperately waiting for the verdict of a public official, whether it be a planning official or a public official of some other type, whereby a decision one way would be a triumph, and a decision the other would mean disaster. The decision comes and it is in favour of that individual, who is understandably delighted and chooses to reward the public official in some way. It may be because the official is personally known to him or because of another set of circumstances that we cannot see at the moment. However, for whatever reason, a reward is given.
It later transpires that the decision taken by the official was the result of an improper performance of his duties as defined under the Bill. However, the individual did not know at the time that the performance was improper. In other words, the official took the decision for an improper reason that was completely unrelated to the behaviour of the person finding himself accused of allegedly giving a bribe.

David Howarth: The Minister will give a more authoritative answer, but my impression is that, in those circumstances, P would not have intended the advantage to reward the person for the improper performance, because there was no connection between the two.

Jeremy Wright: I thought that the hon. Gentleman would say that. That is the bit that worries me. That might be the case, and it might well be what the Government intend. Paragraph 17 of the explanatory notes, on page 4, says:
It is sufficient for the purposes of the offence that P intended to induce or reward impropriety,
which is the point that he is making. However, clause 1(2)(b)(ii) deals with an allegation that someone has rewarded a person
for the improper performance of such a function or activity.
If, in the scenario that I described, the individual waiting for the decision from a public official rewarded the official and the official had carried out improper performance, the individual would be doing exactly what is described in that clauserewarding a person for the improper performancewithout knowing that it was improper performance. That is the bit that worries me.
As far as I can see, the individual would satisfy the clause as it stands as he would have rewarded an official for improper performance, but he would not know that the performance was improper. How could he, if the officials decision was taken for reasons entirely outside his knowledge? That seems to be the issue.

Robert Syms: My hon. Friend is making a valid point. I refer to one difficulty. Somebody whose company had a factory in the midlands, for instance, and who was trying to sell goods to a country abroad might bring the officials who were part of the tendering process to the factory to show them what it could do, how it would be done and the work force. If that person paid their costs, either before the tender or after the contract was awarded, would that fall within the remit of the Bill? That might cause difficulties: somebody might be able to fly to Paris to see what the French could provide, but not be able to fly to Birmingham to see what the people there could provide.

Jeremy Wright: My hon. Friend might be right, but my question refers to inducements made before a decision is taken as much as to rewards after it. The issue that I am raising is whether, after a decision has been taken and someone decides to reward an official for taking it, they will at that point make themselves liable under the clause, without having any idea that the officials performance in taking that decision was in fact improper, for reasons outside their knowledge. That is a real possibility. One way to avoid it arising would be to do precisely what my hon. Friend the Member for Huntingdon suggests and add to clause 1 the requirement that a person is guilty of an offence if they act either with corrupt intent or dishonestly in doing the things described in the clause.
I hope that the Minister will reassure me on that point, as it is a genuine difficulty with the clause. I very much hope that the hon. Member for Cambridge is right, as he usually is, but, on this rare occasion, he might not be. If he is not, we shall leave ourselves open, I would have thought, to the possibility of someone in the scenario that I have described leaving themselves open to criminal prosecution for something that I do not believe that we would wish to penalise in that way.
I hope that the Minister will either accept one of the amendments tabled by my hon. Friend the Member for Huntingdon or reassure us that they are not necessary and that the specific scenario that I have described is covered by the Bill.

Nicholas Winterton: Before I call the Minister, I want to be helpful to the Committee. I understand that this is an important clause in an important Bill, and that the amendments selected for debate are critical, going as they do to the core of the legislation. I understand also that there is some concern that we are making rather slow progress, and that it is possible that the Government might wish to sit after 7 oclock tonight.
My co-Chairman and I have spoken about that matter. There will be a Division in the House at 7 oclock. We have reached the conclusion that, if the Government wish to continue the debate later today, it would be sensible to break for an hour at 7 oclock and return at 8 oclock. After that, the matter of how long the Committee sits is, to an extent, in the hands of the Government Whip. However, I think that it is helpful for members of the Committee to know how the Bill will be considered to enable them to plan their day. I give that due notice.
My co-Chairman Joan Walley and I have discussed the matter. We believe that that will be the best way for the debate to be taken today, if it is the wish of the Committee to sit after 7 oclock. I hope that that is helpful. If there is any problem, I am sure that Members will come to the Chair and discuss it with us.

Claire Ward: Thank you, Sir Nicholas. You have given us some interesting and helpful guidance. It is interesting to note that the hon. Member for Huntingdon, along with his colleagues, has taken nearly two hours to debate the offences of bribery, which many of us already understand. He has done so in the context of a Bill which supposedly has cross-party support and has been the subject of considerable discussion and debate both in another place and through a series of other measures. Indeed, the Law Commission and the Joint Committee, on which the hon. Gentleman and, I believe, the hon. Member for Rugby and Kenilworth also sat, agreed with the report and

Jonathan Djanogly: May I stop the Under-Secretary in mid-flow and ask her to explain which elements of the debate we have just had were unnecessary?

Claire Ward: The debate is certainly necessary However, I question the hon. Gentlemans commitment to the strong and robust Bill that we are seeking to get on to the statute book to stamp out bribery by business

Jonathan Djanogly: Will the Under-Secretary give way?

Claire Ward: Perhaps the hon. Gentleman will let me finish. We have had a considerable amount of time to listen to him. It is important that I respond to the various points that he and his hon. Friends have raised this morning. In respect of the commitment of the Conservative party to this legislation, I trust that we will see the all-party support that he and his party have been keen to indulge in outside this place.

Jonathan Djanogly: My hon. Friends and I rather resent the Under-Secretary questioning our commitment. For the last three years we have been committed to this Bill, calling for it on a regular basis, long before the Minister had anything to do with it. I personally have been calling for this Bill. For her to say today that we are not committed to this Bill when the Government are bringing it to Committee some three weeks before a general election, after it was first brought to the House in 1998, is outrageous.

Nicholas Winterton: Order. I do not like to intervene, but I said at the beginning of this sitting that I hoped it would be agreeable and constructive. We do not want to trespass into Second Reading speeches. We need to deal with clause 1 and the amendments that I have selected for debate at this stage. I hope that the temper of the Committee can be kept at a constructive and low level.

Claire Ward: I note, of course, your guidance, Sir Nicholas. I am sure that others outside the House will draw their own conclusion from the content of this mornings discussion.
The amendments seek to reconstruct both the general bribery offences and the clause 6 offence of bribing a foreign public official. The amendments to the general bribery offences seek to introduce the requirement that the person must either be acting with corrupt intent or acting with dishonesty to commit the offence, while those to the clause 6 offence seek to introduce the concepts of improper, corrupt or undue. The amendments would have the effect of maintaining the current laws unsatisfactory reliance on the concept of corrupt intent and undermine the effectiveness of the new offences.
The concept of acting corruptly is used in the existing outdated legislation, of which we heard much from the hon. Gentleman this morning, which we are seeking to replacethe Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906.

John Howell: I now cannot remember the word the Minister used for the existing practice, but it was something like unacceptable. Will she therefore tell us why the Director of Public Prosecutions stated that the old test had worked adequately in practice?

Claire Ward: We considered the views of the Law Commission on the matter. The term is not defined in those statutes and, as a result, the concept has proved to be vague and intrinsically difficult to apply in practice. That unhelpful construct has led to a number of different and often inconsistent interpretations from the courts on whether intending to corrupt involves dishonesty or committing an act that the law forbids. Furthermore, the Law Commissions comprehensive research and consultation on the point concluded that the lack of clarity surrounding the concept of acting corruptly has weakened the effect of application of the law, and that offences based on the improper conduct model were the best option. Similarly, the Joint Committee on the draft Bribery Bill, on which the hon. Members for Huntingdon and for Rugby and Kenilworth sat, fully endorsed the improper performance test.

John Howell: I thank the Under-Secretary for giving way againshe has been generousbut I am sorry to return to the same point. She cited a lot of organisations that supported her case, but would she say therefore that the Director of Public Prosecutions is wrong to state that the test has worked adequately in practice?

Claire Ward: I can cite rather more than simply organisations; I can cite the Conservatives own Front-Bench spokesman in the other place, Lord Henley, whom we heard little about from the hon. Member for Huntingdon in the earlier part of the debateat one point, I thought that Lord Lyell was the spokesperson for the Conservative party. Lord Henley said of similar amendments tabled by Lord Lyell in another place:
I have some sympathy, but regret that I cannot fully agree with him. In our earlier debates, the Minister argued that acting corruptly is a vague and inherently difficult concept-I think that I quote him correctly. On this occasion, I agree with the Minister's argument over that of my noble and learned friend.[Official Report, House of Lords, 2 February 2010; Vol. 717, c. 120.]
At that important stage of the Bills transition through Parliament, that appears to have been the official view of the Conservative party. However, for other reasons, perhaps related to the impending general election and such considerations, the view of the Conservative Front Bench might have changed.
Under the improper performance model, an offence is committed if financial or other advantage is given to induce or reward impropriety in relation to a relevant function or activity. There must be expectation that the relevant function or activity is to be carried out in good faith or impartially, or that the person performing it is in a position of trust. With that in mind, clauses 1 and 2 of the Bill set out two active and four passive bribery cases, which describe the conduct of the payer or of the recipient that would constitute a bribery offence. Those cases can easily be understood and provide the necessary legal certainty.
The Joint Committee on the draft Bribery Bill endorsed the improper performance test and commented that
the reliance on a reasonable person's expectation of good faith, impartiality and trust represents a careful balance between simplicity, certainty and effectiveness.
Transparency International has been rather more forthright in its comments. Its briefing on similar amendments tabled in the other place said that they
would take the law back to its vague and inadequate state of which such strong and consistent criticisms have been made since the Law Commission first reported in 1998.
As for the amendments to clause 6, I recognise that they seek to address a view that the offence as currently drafted does not adequately describe what is properly regarded as corrupt conduct, because there is no requirement to prove impropriety or dishonesty on the part of the person offering the bribe. However, that criticism fails to recognise the overall formulation of the offence. Furthermore, amendments 7 and 8 fail to define what is meant by intending to influence improperly or corruptly the foreign public official. A prosecution could be opened up to legal arguments on subjective factors, such as defence awareness or knowledge of local laws, or the existence of local customs that tolerate bribery.
I hope that the hon. Member for Huntingdon agrees that we are seeking to put on the statute book legislation that is robust in its view of bribery and that sets out a clear message that bribery by British businesses and others across the globe is not acceptable. We do not want to do anything that might water down the offences or the clear message that we want to send out.
The same might be said of the proposed qualification in amendments 9 and 10 of undue or improper advantage. In the absence of a clear definition, it is unclear how the courts should draw the line between a financial or other advantage, and an improper financial or other advantage. The additional words would introduce an unnecessary, added complication. They represent additional matters for the prosecution to prove, which could undermine the value of the specific offence.
The clause 6 offence covers only the offer, promise or giving of a bribe to a foreign public official, not the acceptance of a bribe. Although the general offences are based on the concept of inducing improper performance of a relevant function or activity, clause 6 provides prosecutors with an alternative to the clause 1 offence, tailored to the particular complexities of prosecuting foreign bribery.
To prove the clause 6 offence, first, the person giving the bribe must intend to influence the recipient in the performance of their functions as a public official. Secondly, the bribe must be intended to obtain or retain business or a business advantage. Finally, the advantage, financial or otherwise, that is offered, promised or given to the foreign public official is defined as a bribe when the foreign official is neither permitted nor required to be influenced by the offer, promise or gift as determined by the written law applicable to the foreign public official. The offence is deliberately formulated so that the only relevant consideration regarding the legitimacy of a payment or other advantage will be the written law applicable to the foreign public official.
There are sound reasons for that approach. It provides legal certainty for those engaged in business overseas, contrary to the view of the hon. Member for Huntingdon, and avoids local custom or practice being a relevant consideration. It is not premised on impropriety because experience shows that such a requirement creates difficulties in achieving a successful prosecution in foreign bribery cases. Inserting a requirement for impropriety would negate the usefulness of having a specific foreign bribery offence.
The hon. Gentleman and his colleagues referred to facilitation payments and rightly said that the Committee will return to the issue when we come to his new clause. I do not want to go into much detail, because I will return to the matter, but a facilitation payment, whether it is called a small facilitation payment, a facilitation payment, or a large facilitation payment, is clearly a bribe. If the hon. Gentleman wants to ensure that outside the House, in the places that matter in the conduct of business, this Parliament sends a clear message that bribes are not acceptable, and that they damage business and British business, I trust that he accepts that facilitation payments, however he wishes to describe them, are simply a bribe in one form or another.
I know that the hon. Member for Huntingdon was a member of the Joint Committee, which backed the formulation of the offences in the Bill. He and his hon. Friend the Member for Rugby and Kenilworth are entitled to take a different view from that of the Joint Committee in its report, although I am not aware of significant views being expressed previously about how they disagreed with the Joint Committee, but I hope that he understands why we do not propose to change tack at this stage of the process.
The amendments were fully debated in the other place, when the Conservative Front Bench took a sensible position in disagreeing with the amendments tabled by Lord Lyell. I do not seek to encourage the Committee to support the amendments; indeed, I ask the hon. Gentleman to withdraw his amendment.

Jeremy Wright: I may have missed it, but I am not sure the Under-Secretary dealt with the point I raised about clause 1. I specifically asked if there is enough reassurance in the clause as drafted regarding whether or not someone who is offering a bribe
to reward a person for the improper performance of such a function or activity
is going to be caught if they are simply offering a reward for the performance of an activity that they did not at that stage know constituted improper performance.

Claire Ward: The hon. Gentleman is looking at the mens rea aspect of the issue. It is clear that we share the view of the Law Commissionagain, it was endorsed by the Joint Committee, which scrutinised this issuethat Rs knowledge and intent should be immaterial as to whether an offence has been committed in cases 4 to 6. To that end, subsection (7) makes that explicit. In cases 1 and 2 of the offence, if the payer intends the improper performance of a function, the offence is made out. That is quite simple. If they intendcase 1 refers to intentionimproper performance, they have made that offence.

Jeremy Wright: I think the Under-Secretary is answering my question in the way I hoped she would, but just to be absolutely clear, is she saying that the intention relates to the improper performance, not simply to the process of rewarding? I suspect that that is where the potential confusion lies in the current drafting, which is why it would be helpful if she clarified the position.

Claire Ward: I am happy to come back to the hon. Gentleman if there is any misunderstanding or doubt about what I have said, which is that, as in clause 1(2), if the payer intends the improper performance of the function, that offence is made out. If there is any misunderstanding about that, I am happy to write to the hon. Gentleman.
I believe I have answered all the relevant issues raised in the earlier part of the debate. I once again encourage the hon. Member for Huntingdon to withdraw his amendment.

Jonathan Djanogly: This has been a full debateI hope my hon. Friend the Member for Henley has not been put off his jury service as a result. The debate was required to provide the Commons with the opportunity to discuss serious issues and a serious change in the law. I am pleased that we had this debate and had we not done soas I think the hon. Member for Cambridge wantedthat would have been wrong. I am not going to talk about our commitment to the Bill because I have mentioned that previously, but I point out that by lunch on the first day, we will have covered at least 10 of the approximately 30 amendments that have been tabled. To suggest in any way that we are trying to hold back progress is ridiculous.

Jeremy Wright: While my hon. Friend is at it, will he also observe that the Governments programme motion, with which we have all agreed, allows what the Government consider to be an appropriate amount of time for the Bill. As he rightly points out, we are making steady, if not swift, progress.

Jonathan Djanogly: The spokesman for the Lib Dems, the hon. Member for Cambridge, said that the definition of corruption is a question for the jury and that that should be separated from the concept of proper, which is clearly defined in the Bill, and therefore everything will be fine.

David Howarth: I did not say that at all.

Jonathan Djanogly: Let me say that what the hon. Gentleman did say was slightly unrealistic. The question of what is improper will also, in practice, have to be put to the jury. The hon. Gentleman needs to appreciate that we are creating new law here that is a dramatic change from the previous law. The definition of improper will be heavily debated in court. The courts will have to give significant guidance that will be a patchwork of what the Government will come out with, and, inasmuch as they have had debates over the years about what corruption means, they will debate over the years what improper means. As my hon. Friend the Member for Rugby and Kenilworth said, if we are concerned about the scope of the word improper, even if we accept it in the Bill, we need to appreciate that the courts will have to spend some time looking at it again at some future point. I will leave it at that.
I make no apology for wanting to cover all the bases in the Bill. The Under-Secretary answered the questions on its legal aspects to some degree, and I will consider what she said in preparation for Report stage. However, I should like to make a few points on the Bills practical applications. She rightly said that we will debate facilitation payments on another occasion, but I am proposing in my amendments a way of avoiding that debate. Without these proposals, which admittedly we are advancing in the form of probing amendments, we would still have to deal with the question of facilitation payments, which would not otherwise be dealt with now.

Claire Ward: Does the hon. Gentleman accept that a facilitation payment is a bribe?

Jonathan Djanogly: A facilitation payment is a bribe. However, the Under-Secretary needs to recognise that in certain jurisdictions carve-outs are made for facilitation payments under strict guidelines. For instance, the United States has a specific exemption for what it calls facilitation payments. We are moving from differentiating between what is, in effect, a tip and a bribe. Yes, differences are made up and I accept that, under the Bill, those payments are bribes.
There are dangers associated with facilitation payments that the Under-Secretary did not mention. It is not only a matter of the law of our country looking at facilitation payments. If there is a carve-outwe will debate this later and I will make this pointthe fact that someone is bribing under the law of the country where the facilitation payment is made means that the business man making that payment would still be liable for prosecution in that country in any event. That is often forgotten. That is a debating point, and we suggest that the amendments would get round having to have that debate at all.
The Under-Secretary did not mention various practical aspects, such as whether the Government have assessed the impact of clause 6 on British companies, which are concerned about that. On clause 6, has she looked at which other signatories to the convention have also done away with the improper element?

Claire Ward: The OECD has endorsed the Bill and has suggested that it presents a best practice model. Although the hon. Gentleman speaks about the practice of facilitation payments in rather flowery language, I note that he endorses the fact that they are indeed a bribe. The purpose of the Bill, and our intended purpose as a Government, is to set out clearly that bribes are not acceptable. I hope he agrees with that.

Jonathan Djanogly: I do not think anybody is arguing that the Bill is unnecessary or that we do not need to crack down on bribery. The question is the extent to which there should be prosecutions and exemptions under the law in particular circumstances. The Under-Secretary did not answer my question, which was, in the context of the clause 6 offence, to what extent other signatories to the convention have done away with the improper element of the offence.
I take the Under-Secretarys point that we will have the gold standard in anti-bribery law among the OECD countries, and probably in the world. We not only recognise but support that. However, we must ensure that our companies are prepared for that challenge. I do not think she answered my question about publishing guidance. Will guidance on clause 6 be merged with the other guidance on the Bill that is being published, or will it be done separately? When can we expect it to be published?

Nicholas Winterton: Does the Under-Secretary wish to intervene?

Claire Ward: I will accept the invitation. With all due respect, Sir Nicholas, the issue of guidance will be dealt with in our debates on clauses 7 and 9. I think it appropriate to reserve my comments until that point.

Jonathan Djanogly: When the Under-Secretary addresses the question of guidance on other aspects of the Bill, I ask her to ensure that she includes the Governments position on clause 6. On the basis that we can consider what the Under-Secretary has to say on other aspects of the Bill, which all merge together and will have to be considered as a whole when we move towards Report stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clauses 2 to 5 ordered to stand part of the Bill.

Nicholas Winterton: I congratulate the Committee on the speed with which it has debated up to clause 6.

Clause 6

Bribery of foreign public officials

Jonathan Djanogly: I beg to move amendment 11, in clause 6, page 4, line 12, at end insert
(3A) It shall be a defence if P reasonably believed at the time of the alleged offence that F or the third party to whom the financial or other advantage was given was required or permitted to accept it under the domestic law of the jurisdiction in which F or the third party operates..
As you have explained, Sir Nicholas, we have covered about a quarter of the Bill by lunch. If anyone thinks we have been holding up proceedings, I ask them to think again.
This probing amendment would insert a defence of reasonable belief into the offence of bribing a foreign official. The reasonable belief relates directly to the defendants knowledge of the laws of the foreign country.
As before, presumably, the Government will counter with the argument that prosecutorial discretion will cure any of the failings in the offence. We question how they can be sure of that. Is it sufficient to rely on that discretion as a cure-all to what are fundamental problems with the structure of the offences as they stand? We have already debated the need for a change to the test of impropriety, and this amendment is in similar vein.
There is an important point concerning the circumstances in which different countries or cultures have different laws or cultural norms, and whether those laws or norms should be taken into account when considering the criminality of an individuals actions. A report from the Law Commission in 2008 noted that standards of conduct in the UK and Europe were not universally recognised within Europe, let alone within a wider global context.
The Law Commission proposed a defence for any person who mistakenly but reasonably believed that a foreign official was required or permitted to accept an advantage under the officials local law. However, the Government have decided not to include that defence in the Bill and I would be grateful if the Minister explained the reasoning behind its exclusion. I understand that the majority of respondents to the Law Commission report, which included the Serious Fraud Office and the Association of Council Secretaries and Solicitors, were in favour of such a defence.
I must make a brief aside, for the purposes of clarification. We are seeking this amendment and the proposed defence in relation to the discrete offence of bribery of a foreign official, not in relation to the general offence of bribery. The distinguishing advantage is that the focus of the general offence is on the propriety of the offending individuals conduct, not on the supposed legal propriety of the advantage. The offence is founded on a hybrid influence or improper conduct model, rather than on the influence or undue payment model, which forms the basis for the discrete offence of bribing a foreign public official.
I concede that bribery is subject to almost universal prohibition across the globe. However, that prohibition does not solve the problem of whether particular payments or other advantages are bribes, or could reasonably be seen as being bribes. Taxes, fees, administration payments and so forth may all be legally required or permitted in certain circumstances. Quite understandably, those paying them may believe that they are legal requirements, or that they are legally permitted in particular circumstancesfor example, when the administration involved is time-consuming.
The Bill makes no provision for the carve-out of facilitation payments, but the defence recommended in the amendment would provide some protection for so-called innocents abroad. There is the potential for flexibility in the application of the defence, as there is between individuals and commercial organisations. The threshold of reasonableness for the latter would be much higher; they would be required to prove far higher diligence than an individual. For instance, the Law Commission suggested that
companies seeking to make use of the defence should have to show, as part of their business strategy for dealing with the officials in question, that they took appropriate steps to discover whether any payments requested would indeed be required or permitted by law.
One of the key arguments against the Law Commissions recommendation for a defence was the suggestion from the High Court judges that a core principle of English law is, Ignorance of the law is not a defence. However, that was tempered with the judges suggestion that it might be preferable to build into the offence a fault element, so that the accused must have acted dishonestly. I do not wish to rehash the earlier debate on the issue, other than to flag up that endorsement for our earlier proposals.
In evidence to the Joint Committee and to the Law Commission in its original report, Professor Horder highlighted the fact that not all English authorities support a completely unyielding adherence to the maxim that ignorance of the law is not a defence and the leading case law is not entirely consistent in its application of the maxim. Members should contrast Cambridgeshire and Isle of Ely county council v. Rust with Postermobile plc v. Brent borough council as proof of that.
Canada, which is another common-law jurisdiction and also a signatory to the OECD convention, takes a more generous approach, at least where the error was induced by an official. Where the law in question, of which the defendant was ignorant, is not English law but the law of another jurisdiction, the case for adhering strictly to the maxim seems even less persuasive, as the Law Commission sensibly suggested. Professor Horder also reiterated that distinguishing element and suggested that a mistake of foreign law may legitimately be treated differently from a mistake of domestic law.
Furthermore, strictly speaking it is not ignorance of the law that is the basis of the defence proposed in the amendment, in so far as that implies that a mere absence of knowledge of the law would, in and of itself, amount to an excuse. The defence would require a positive and adequately grounded belief that a payment was required or permitted by law, which would be sufficiently flexible to allow for a proportional application of the defence. A test of reasonableness is not something that has traditionally proven difficult for jurors in the English court system to apply.
The International Chamber of Commerce supported a defence as
a useful addition to the written law
test, since juries are
much more suited to find whether a reasonable attempt to ascertain law had been made rather than to decide upon the law itself.
Professor Horder alluded to that in evidence:
In practice this defence would not run very often, but when it was it
would be
perfectly reasonable for a firm to say, Well, look, the biggest law firm in the world has given us this advice that it is perfectly lawful to make this payment, what can we do? We can only rely on that. That is important because we are talking about convicting someone of a pretty serious offence. The taint of corruption is pretty significant.
He was not alone in that view, as many of those providing evidence to the Joint Committee reiterated that sentiment.
Major global law firms Herbert Smith LLP and Clifford Chance both supported the idea of a clear defence and suggested that a dearth of legal authorities in some countries can lead to advice being heavily qualified, leaving quick decisions to be made on a best guess basis. The Director of Public Prosecutions also preferred the option of adding a statutory offence in the interests of transparency and accountability. Considering that weight of evidence in favour of a defence in the manner proposed by the amendment, will the Minister please let me know why the Government decided not to include it in the draft Bill?
The Governments response paper to the Joint Committees report is noticeably light in that regard when discussing the defence, despite the Joint Committees concerns. Much emphasis seems to be placed on appeasing the OECD. Paragraph 69 of the Joint Committees report states:
The Governments decision to drop the defence followed objections from the OECD. Its Working Group considered that such a defence would be open to abuse and would contradict the general stance of the UK legal system, under which mistake of the law is no excuse.
I would be interested to know from the Minister why such weight was afforded to the objections of the OECD but not to the arguments put forward by the DPP, Professor Horder, the ICC and 19 other members of the Law Commissions consultation who voted in favour of a defence being drafted into the Bill.
In evidence to the Joint Committee, the Secretary of State for Justice stated that not having a defence in the Bill struck the correct balance and placed reliance once again on prosecutorial discretion. However, two paragraphs earlier, in paragraph 68, the DPP is recorded as saying that he preferred the option of adding a statutory defence in the interests of transparency and accountability. Is the Minister not concerned that the prosecutor, whose discretion he is relying so heavily upon to moderate the effect of the offence, has publicly asked for a statutory offence? That concerns us, which is why we tabled the amendment.

David Howarth: I want to be fair to the hon. Gentleman, as I think that that point, unlike those we discussed at length this morning, needs to be discussed, and I will be interested to hear the Governments responses to his questions. My view is that what the Government have done is probably right, but I will listen to the Ministers reply with interest.
The point, as the hon. Member for Huntingdon said, is of course that the OECD did not like the idea of that extra defence. To paraphrase an OECD official, the reason it did not like it was that it is all too easy to obtain bad legal advice if one wants it. That might be a cynical point of view, but given the history of corporate behaviour in this area, I do not think it unrealistic.
A point to add is that proving foreign law is a matter of fact in our courts. The process of proving what the foreign law was would be for the court to decide on, as a matter of fact. As to the notion that a defendant might say that foreign law was x, and the prosecution that it was y, I do not think that that will become an issue. It would be too difficult for the prosecution to prove. The onus would be on the prosecution to prove that foreign law was not what was claimed.

Jonathan Djanogly: I totally agreethe Bill makes it clear that it is not only foreign law but written foreign law that is relevant. There will not be any debate about that, but the question is how to deal with the fallout when it is not applied justly.

David Howarth: I do not think that that will arise at all in practice, because it would be for the prosecution to prove that foreign law was not what the defendant believed it to be. I just do not see that happening in the way that the hon. Gentleman supposes. I suppose that there might be circumstances in which a case that occurred in the foreign jurisdiction showed that the law was different from what it was thought to be at the time, but that is a very low-probability event.

Jonathan Djanogly: I spent many years practising as a corporate lawyer advising companies working in far-away places, and often having to look for local legal opinions. Sometimes they are almost impossible to find; sometimes transactions happen fast and there is not a year to find outan opinion is needed in a few days. There might be one expert in the whole country on a given matter, particularly in ex-Soviet countriesperhaps not so much now, but certainly a few years ago when they did not have a very developed corporate law. There were very few lawyers who could interpret, and often their interpretations were not of the standard that one might have expected in our country. That can sometimes be an issue in real life.

David Howarth: I fully accept that point with regard to trying to find out what the courts of a particular country would do. However, my fundamental point is that we are talking about what the courts here would do about foreign law, and it seems to me to be an issue of fact that the prosecution would have to prove beyond reasonable doubt, so I do not think that the issue the hon. Gentleman raises would be a problem in practice.

Claire Ward: The amendment would create a defence in circumstances where P reasonably believed that F or a third party was permitted or required to accept the advantage by the applicable domestic law. I appreciate that, as has already been explained, the Law Commission originally proposed such a defence in its report. We considered the matter seriously and took into account the representations and views of the OECD. We came to the conclusion that a specific defence of the kind set out in the amendment would not be appropriate.
The reason for our view is that, as has been mentioned, businesses are engaged in transactions and business across the world, and have a responsibility to understand the law of the countries in which they operate. If necessary, they should have access to legal advice on the legitimacy of payments to foreign public officials. It is not acceptable to plead ignorance of the law as a defence in this country, and it is not acceptable in the circumstances set out in the clause to plead ignorance of the law in another country where one is doing business.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four oclock.